05/04/2004 01:45 PM House TRA
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE TRANSPORTATION STANDING COMMITTEE
May 4, 2004
1:45 p.m.
MEMBERS PRESENT
Representative Jim Holm, Chair
Representative Beverly Masek
Representative Vic Kohring
Representative Dan Ogg
Representative Nick Stepovich
Representative Mary Kapsner
Representative Albert Kookesh
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 31(RES) am
"An Act relating to a transportation corridor for extension of
the Alaska Railroad to Canada and to extension of the Alaska
Railroad to connect with the North American railroad system."
- MOVED CSSB 31(RES)AM OUT OF COMMITTEE
HOUSE BILL NO. 560
"An Act relating to application of municipal ordinances
providing for planning, platting, and land use regulation to
interests in land owned by the Alaska Railroad Corporation; and
providing for an effective date."
- HEARD AND HELD
SENATE BILL NO. 316
"An Act relating to motor vehicle safety belt violations."
- MOVED HCS SB 316(TRA) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: SB 31
SHORT TITLE: RAILROAD UTILITY CORRIDOR TO & IN CANADA
SPONSOR(S): SENATOR(S) COWDERY
01/21/03 (S) READ THE FIRST TIME - REFERRALS
01/21/03 (S) TRA, RES, FIN
02/11/03 (S) TRA AT 1:30 PM BUTROVICH 205
02/11/03 (S) Heard & Held
02/11/03 (S) MINUTE(TRA)
02/25/03 (H) TRA AT 1:30 PM CAPITOL 17
02/25/03 (S) <Bill Hearing Postponed to 3/11>
03/11/03 (H) TRA AT 1:30 PM TERRY MILLER 104
03/11/03 (S) <Bill Hearing Postponed to 3/18/03>
03/18/03 (H) TRA AT 1:30 PM CAPITOL 17
03/18/03 (S) <Above Bill Hearing Postponed>
03/27/03 (H) TRA AT 1:30 PM CAPITOL 17
03/27/03 (S) Moved CSSB 31(TRA) Out of Committee
03/27/03 (S) MINUTE(TRA)
03/31/03 (S) TRA RPT CS 2DP 2NR 1AM NEW TITLE
03/31/03 (S) DP: COWDERY, THERRIAULT;
03/31/03 (S) NR: OLSON, WAGONER; AM: LINCOLN
04/14/03 (S) RES AT 3:30 PM BUTROVICH 205
04/14/03 (S) Heard & Held
04/14/03 (S) MINUTE(RES)
04/23/03 (S) RES AT 3:30 PM BUTROVICH 205
04/23/03 (S) Moved CSSB 31(TRA) Out of Committee
04/23/03 (S) MINUTE(RES)
04/24/03 (S) RES RPT CS 4DP 3NR NEW TITLE
04/24/03 (S) NR: OGAN, ELTON, LINCOLN;
04/24/03 (S) DP: SEEKINS, STEVENS B, WAGONER, DYSON
05/07/03 (S) FIN AT 9:00 AM SENATE FINANCE 532
05/07/03 (S) Heard & Held
05/07/03 (S) MINUTE(FIN)
01/29/04 (S) FIN AT 9:00 AM SENATE FINANCE 532
01/29/04 (S) Heard & Held
01/29/04 (S) MINUTE(FIN)
04/22/04 (S) FIN RPT CS(RES) 3DP 1DNP 2NR 1AM
04/22/04 (S) DP: WILKEN, DYSON, STEVENS B;
04/22/04 (S) NR: GREEN, HOFFMAN; DNP: BUNDE;
04/22/04 (S) AM: OLSON
04/22/04 (S) FIN AT 9:00 AM SENATE FINANCE 532
04/22/04 (S) Moved CSSB 31(RES) Out of Committee
04/22/04 (S) MINUTE(FIN)
04/26/04 (S) BEFORE THE SENATE IN SECOND READING
04/28/04 (S) TRANSMITTED TO (H)
04/28/04 (S) VERSION: CSSB 31(RES) AM
04/29/04 (H) TRA AT 1:30 PM CAPITOL 17
04/29/04 (H) -- Meeting Canceled --
04/30/04 (H) READ THE FIRST TIME - REFERRALS
04/30/04 (H) TRA
05/04/04 (H) TRA AT 1:30 PM CAPITOL 17
BILL: HB 560
SHORT TITLE: MUNICIPAL LAND USE REGULATION
SPONSOR(S): TRANSPORTATION
04/27/04 (H) READ THE FIRST TIME - REFERRALS
04/27/04 (H) TRA, CRA
04/29/04 (H) TRA AT 1:30 PM CAPITOL 17
04/29/04 (H) -- Meeting Canceled --
05/04/04 (H) TRA AT 1:30 PM CAPITOL 17
BILL: SB 316
SHORT TITLE: SEAT BELT VIOLATION AS PRIMARY OFFENSE
SPONSOR(S): SENATOR(S) BUNDE
02/11/04 (S) READ THE FIRST TIME - REFERRALS
02/11/04 (S) STA, JUD
02/26/04 (S) STA AT 3:30 PM BELTZ 211
02/26/04 (S) Moved SB 316 Out of Committee
02/26/04 (S) MINUTE(STA)
02/27/04 (S) STA RPT 2DP 1NR
02/27/04 (S) DP: STEVENS G, COWDERY; NR: STEDMAN
03/12/04 (S) JUD RPT 1DP 2NR
03/12/04 (S) DP: SEEKINS; NR: FRENCH, THERRIAULT
03/12/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/12/04 (S) Moved SB 316 Out of Committee
03/12/04 (S) MINUTE(JUD)
03/19/04 (S) TRANSMITTED TO (H)
03/19/04 (S) VERSION: SB 316
03/22/04 (H) READ THE FIRST TIME - REFERRALS
03/22/04 (H) TRA, JUD
04/23/04 (H) JUD AT 1:00 PM CAPITOL 120
04/23/04 (H) <Bill Hearing Postponed>
04/27/04 (H) TRA AT 1:30 PM CAPITOL 17
04/27/04 (H) Heard & Held
04/27/04 (H) MINUTE(TRA)
04/28/04 (H) JUD AT 1:00 PM CAPITOL 120
04/28/04 (H) -- Meeting Canceled --
05/03/04 (H) JUD AT 1:00 PM CAPITOL 120
05/03/04 (H) Scheduled But Not Heard
05/04/04 (H) TRA AT 1:30 PM CAPITOL 17
WITNESS REGISTER
RICHARD SCHMITZ, Staff
to Senator John Cowdery
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SB 31 on behalf of Senator
Cowdery, sponsor.
BOB LOEFFLER, Director
Mining, Land and Water
Department of Natural Resources (DNR)
Juneau, Alaska
POSITION STATEMENT: During discussion of SB 31, answered
questions.
BARBARA COTTING, Staff
to Representative Holm
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided information on CSHB 560, Version
I.
PAT GAMBLE, President & CEO
Alaska Railroad Corporation
Department of Community & Economic Development (DCED)
Anchorage, Alaska
POSITION STATEMENT: Related ARRC's views and proposals with
regard to CSHB 560, Version I.
LAUREN WICKERSHAM, Staff
to Senator Con Bunde
Alaska State Legislature
POSITION STATEMENT: Spoke on behalf of the sponsor of SB 316,
Senator Bunde.
KATHY WELLS, Executive Director
Friends of Mat-Su
(No address provided)
POSITION STATEMENT: Testified in opposition to HB 560.
MARC LAMOREAUX, Eklutna Tribe
(No address provided)
POSITION STATEMENT: Urged the committee to reject HB 560.
SARA HEIDEMAN, Attorney
Native Village of Eklutna
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 560, provided
information regarding the situation between ARRC and the Native
Village of Eklutna.
VERA JAMES
Alaska Native Health Board (ANHB)
Anchorage, Alaska
POSITION STATEMENT: Urged the legislature not to pass HB 560
because it fails to take into account the voices and interests
of residents [of Eklutna] and the public.
SUSANNE DiPIETRO
Anchorage, Alaska
POSITION STATEMENT: Related her opposition to Section 1 [of
Version I].
KEVIN RITCHIE, Executive Director
Alaska Municipal League (AML)
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 560, related AML's
belief in local control of community development while
acknowledging that with a statewide transportation system some
issues will have to be regulated consistently throughout the
state.
ACTION NARRATIVE
TAPE 04-16, SIDE A
Number 0001
CHAIR JIM HOLM called the House Transportation Standing
Committee meeting to order at 1:45 p.m. Representatives Holm,
Masek, Stepovich, and Kookesh were present at the call to order.
Representatives Kohring, Ogg, and Kapsner arrived as the meeting
was in progress.
SB 31-RAILROAD UTILITY CORRIDOR TO & IN CANADA
CHAIR HOLM announced that the first order of business would be
CS FOR SENATE BILL NO. 31(RES) am, "An Act relating to a
transportation corridor for extension of the Alaska Railroad to
Canada and to extension of the Alaska Railroad to connect with
the North American railroad system."
Number 0084
RICHARD SCHMITZ, Staff to Senator John Cowdery, Alaska State
Legislature, explained that SB 31 establishes a series of steps
toward the ultimate goal of opening the way to complete a
railroad connection between Alaska and the North American rail
system. The legislation doesn't require any appropriations,
although it allows the Alaska Railroad Corporation (ARRC) to use
funds it can obtain to go into Canada and possibly connect with
the railroad in British Columbia. He informed the committee
that in the Senate Resources Standing Committee there was
concern with what would happen if once the corridor is
established, the pipeline comes along. The Senate Resources
Standing Committee and the Department of Natural Resources
developed language specifying what would happen as the process
progresses. [With that goal], SB 31 authorizes ARRC to obtain
ownership or right-of-way through any of the land "where the
federal private". The legislation also mandates a 500-foot
corridor for other uses, such as fiber optic cable, power
transmission lines, et cetera. Additionally, the corridor would
allow specific railroad-related uses, such as depots, material
storage, gravel pits, et cetera.
Number 0362
BOB LOEFFLER, Director, Mining, Land and Water, Department of
Natural Resources (DNR), turned to how DNR deals with the gas
line. Mr. Loeffler explained that SB 31 requests that ARRC
designate a corridor, which is really managed by DNR. Before a
railroad is built, DNR retains the right to authorize the gas
line through a lease after consulting with ARRC in order to
review possibilities for accommodating future railroads. If the
railroad is constructed before a gas line, DNR reserves the
right to cross the railroad, authorize a gas line, and retain
the revenues. He pointed out that the aforementioned is found
in subsections (f) and (g) on pages 4 and 5 of the legislation.
Mr. Loeffler opined that the language places DNR in the
"driver's seat" in order to ensure that the [railroad and the
gas line] are compatible. In response to Chair Holm, Mr.
Loeffler confirmed that the legislation doesn't forego the
authority of the State of Alaska by giving it to ARRC.
MR. SCHMITZ acknowledged the possibility that the railroad could
be built at the same time as the gas line or even before the gas
line. However, the reality is that a railroad, unlike trucks,
can carry the 80-foot sections of pipe for the gas line.
Therefore, the railroad has an opportunity to lower the
construction costs of a gas line. In fact, if a railroad could
save 25 percent of the actual building costs of a gas line, then
that would "sort of" pay for building the railroad. For those
reasons, throughout the world a number of railroads have been
built the same time as a pipeline. To have a railroad
connection with rest of North America is a real economic
development opportunity and would be a tremendous boost for the
oil and gas sector.
CHAIR HOLM asked if the right-of-way is fee simple.
MR. SCHMITZ answered that it's fee simple for state land.
MR. LOEFFLER explained that DNR would retain the land until ARRC
has the financing and is ready to build a segment. Once a
segment is built, an as-built survey is performed. At that
point, ARRC would retain 100 feet plus the necessary sidings
while DNR would retain the remainder of the 500-foot corridor.
In further response to Chair Holm, Mr. Loeffler explained that
although ARRC would obtain a patent from the state, DNR would
reserve a couple of things from that patent. He specified that
DNR would reserve the ability to transport people. For
instance, if a village needed access to good recreation grounds,
it's DNR's responsibility. Mr. Loeffler noted that DNR would
also reserve the subsurface estate.
Number 0820
REPRESENTATIVE MASEK moved to report CSSB 31(RES)am out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, it was so ordered.
HB 560-MUNICIPAL LAND USE REGULATION
CHAIR HOLM announced that the next order of business would be
HOUSE BILL NO. 560, "An Act relating to application of municipal
ordinances providing for planning, platting, and land use
regulation to interests in land owned by the Alaska Railroad
Corporation; and providing for an effective date."
BARBARA COTTING, Staff to Representative Holm, Alaska State
Legislature, informed the committee that before it is CSHB 560,
Version I. Version I reflects changes made in the Senate adding
bonding for the railroad to Greely.
Number 0907
REPRESENTATIVE MASEK moved to adopt CSHB 560, Version I, dated
5/4/04, as the working document.
CHAIR HOLM objected for discussion purposes.
The committee took an at-ease from 1:58 p.m. to 1:59 p.m.
Number 0945
PAT GAMBLE, President & CEO, Alaska Railroad Corporation,
Department of Community & Economic Development (DCED), turned to
the rail corridor portion of Version I. He related that there
has been discussion between ARRC and the military regarding the
active duty military from Fort Wainwright who need to access
upwards of 1 million acres of training land south of Fairbanks
and those at Fort Greely [who need access to] the missile site.
The ARRC has reviewed those two missions and has suggested it
may be able to provide an alternative in terms of enhancing the
capability to perform the mission, the quality of life for the
work place as well as the families, and doing it cheaper by
using ARRC's tax-free bonding capability. Mr. Gamble emphasized
that this concept is being presented today in order to obtain
pre-approval so that if the dialogue is continued with the
military, the concept could be taken to the proposal level. He
expressed the need to know that the legislature would find favor
with bonding for the aforementioned.
CHAIR HOLM commented that it's difficult for the legislature to
agree with something before the fact.
MR. GAMBLE said that the initial concern has centered on the
financing. Mr. Gamble explained that ARRC's proposal is that
the debt service would be paid by contract through the
Department of the Army and the financial means of the Strategic
Defense Missile Command. Therefore, two contracts would be
combined in order to guarantee the debt service over the period
of the bond. The aforementioned seems to be the main concern.
"As far as the DNR hook would be that we would in fact use the
same geographical corridor area that has been surveyed several
times over the past ... half a century and that we, for example,
are talking about the gas pipeline going down," he said. The
corridor would follow the east side of the Tanana River to Flag
Hill where it would cross the river at a bridge and proceed down
the west side and eventually traverse across [via another
bridge] to the Fort Greely and Delta Junction area. Mr. Gamble
related that he didn't believe there have been objections to
continuing to consider the aforementioned corridor. In response
to Chair Holm, Mr. Gamble related his hesitation in referring to
the area beyond Delta Junction because the route hasn't been
surveyed to his satisfaction.
CHAIR HOLM related his interest in a long-term approach [to the
area beyond Delta Junction] because it doesn't seem to make
sense to be on the west side of the Tanana River.
MR. GAMBLE informed the committee that the engineers have to
determine which side [of the river] is suitable for rail.
Furthermore, the current route to Delta Junction under
discussion has been reviewed specifically for 79 mile per hour
(mph) track because of the commuter service to Delta Junction.
The aforementioned calls for certain geographic requirements.
Mr. Gamble turned to the Delta Junction Fort Greely area where
[the track] would round the corner and move east, there's not a
mandate to have 79 mph track. He indicated that if there is a
need to slow down in that area in order to keep the costs down
due to the geography of the area, it could be done. For
example, the railroad could cut through a mountain to keep the
track straight and maintain a speed of 79 mph or the railroad
could proceed around the end of the mountain and slow down to 49
mph. In the aforementioned case, the cost would be considerably
less to use the curved track versus going through the mountain.
CHAIR HOLM related that going east to the border is quite flat
terrain, and therefore there should be options for the railroad.
Number 1360
REPRESENTATIVE STEPOVICH interjected that the costs, route, and
options of the railroad are dictated by the projected use of the
railroad. Therefore, he inquired as to the use of the railroad
by Fort Greely.
MR. GAMBLE pointed out that the [legislation] includes a trigger
relating the notion that this has to be viable from a military
point of view. The military has to agree to the life of the
bonds to fund the debt service. Mr. Gamble explained that the
concept is to handle the service requirements of two separate
military entities through a single line. He noted that each of
the military entities intend to accomplish their mission and
have forecasted the costs to do so. The ARRC's proposal is to
lay the debt service costs down and on a year-by-year basis
allow the military to review what ARRC would charge them under a
contract as opposed to what would be required for that military
entity in appropriations plus what would've been paid for
operations and maintenance moving forward alone. The
aforementioned has been done internally in Alaska with the
active duty Army at Fort Wainwright and there was very strong
support for the proposal by which the active duty Army at Fort
Wainwright would have rail access down to Flag Hill across the
river with a spur entering 11 miles in the training area. The
remaining approximately 35 miles down to Fort Greely would [be
used] for some freight but mainly to provide the National Guard
in the area the opportunity to decide whether they want to live
at Fort Greely - Delta [Junction] or Fairbanks. Fairbanks
offers an attractive living environment compared to living in
renovated housing at Fort Greely, not to mention that certain
services are [only] provided in Fairbanks. Allowing the option
to live in Fairbanks could avoid the appropriated costs of
rebuilding Fort Greely. The aforementioned provided a lot of
merit to the proposal and elicited interest and desire to move
to the next level in the process.
REPRESENTATIVE STEPOVICH surmised that the railroad would be
constructed in time for the missiles to be transported on it.
MR. GAMBLE related his educated guess that the railroad would
probably be a backup plan when weather conditions prevented the
missiles from being flown in and out of the airfield. Mr.
Gamble informed the committee that the principle way to move the
missiles is by air and there is no backup plan.
Number 1595
REPRESENTATIVE OGG inquired as to the current bonding authority
of ARRC.
MR. GAMBLE explained that ARRC has quite a unique capability to
issue tax-free revenue bonds, which aren't subject to the state
cap. The restriction for ARRC probably lays within the fact
that it [has] to be for state and railroad purposes. In further
response to Representative Ogg, Mr. Gamble confirmed it would be
unlimited on revenue. In fact, last year the legislature pre-
approved $17 billion of authorization for ARRC due to the
possibility of the gas pipeline. Mr. Gamble informed the
committee that ARRC has never before bonded. In further
response to Representative Ogg, Mr. Gamble confirmed that
[statute] specifies that when ARRC comes to the legislature for
bonding approval it has to be project specific.
CHAIR HOLM turned attention to [the rail] from Healy to Flag
Hill.
MR. GAMBLE stated that it's a separate issue that hasn't entered
into this proposal.
Number 1703
MR. GAMBLE turned to the first half of Version I. Mr. Gamble
explained that [this legislation] is to reenact the status quo
and the capability that ARRC has had for 18 years until the
recent Alaska Supreme Court decision. With regard to planning
and zoning authority over ARRC at the municipal level, ARRC
argued that we were exempt while the challenge stated that ARRC
needed to obtain a permit. The court did not decide on the
issue as to whether ARRC was or wasn't exempt. He related that
the court said: "Because the legislature did not clearly
express its intent to exempt the railroad from local zoning
laws, we reverse and remand." Therefore, there is the option of
the legislature to express the intent more clearly and if it
doesn't, the court provided some guidance. The ARRC agreed with
the minority on the decision, which said that ARRC is exempt
from planning and zoning. Mr. Gamble explained that he agreed
that ARRC is exempt from planning and zoning because there is a
federal exemption from planning and zoning for railroads. When
the transfer occurred, the legislature attempted to mirror the
federal exemption for the railroad at the state level for much
of the same purposes that the federal government exempted
railroads. However, the court specified that the legislature's
language was unclear. Mr. Gamble specified that he agreed ARRC
is exempt from planning and zoning because the legislature
passed the legislation, which was signed by the governor. The
legislation has been in existence for 18 years, and therefore it
seems that the intent of the legislation and the [bodies that
passed it] are clear. The court's decision has led to this
legislation, which attempts to provide a clear expression of the
intent that has been enforced for the last 18 years.
Number 1850
REPRESENTATIVE MASEK, upon hearing from those in the Matanuska-
Susitna Borough, expressed concern with Section 1, which she
said she didn't support.
REPRESENTATIVE KAPSNER inquired as to ARRC's understanding of
the relationship between Eklutna and (indisc.). She further
inquired as to ARRC's view of a municipality having authority
over its site and how "we" can be more neighborly.
MR. GAMBLE opined that a healthy relationship between ARRC and
the Native Village of Eklutna and Eklutna, Inc., needs to be
maintained because a lot of business has been done and will be
done with those two entities. He said that the court case
doesn't poison the relationship in any way. It's important that
the legal issues not become personal. The ARRC is trying to
keep the large picture in [perspective]. In regard to the
federal exemption for interstate commerce, ARRC's position is
that it's an instrument of the state and the same concerns exist
for intrastate commerce. Mr. Gamble acknowledged that interest
of the municipalities and boroughs is related to land use rather
than operational control of the railroad. However, the court
has said that without the exemption, a permit must be applied
for in every case. If one disagrees "with what you get back,"
then litigation is the next step. During litigation, the court
will decide whether it agrees with ARRC's position, after which
the appeals process can occur. Mr. Gamble said that the
aforementioned occurs with over 13 entities along the Railbelt.
The very nature of the dialogue and concern expressed by the
entities along the line is the reason the federal exemption was
made in the first place because when the process is tied up in
court on a case-by-case basis, it, in effect, stops the action.
"It is precisely this issue that ... the federal law and the
legislators ... when they wrote the state law were trying to
overcome," he said. The actions of one municipality or borough
can have a ripple effect with the municipality or borough next
door.
MR. GAMBLE related, in an attempt to allay concerns, that about
80 percent of ARRC's projects are federally funded. Therefore,
a very involved public process is required through the National
Environmental Policy Act of 1969 (NEPA). All ARRC's projects
are listed on its web site and listed by municipality and
borough. Mr. Gamble said that taking away all that public
process leaves a number of ARRC funded projects, which tend to
be the cheap ones because ARRC likes to use federal money to
leverage ARRC's money. The smaller projects, such as fixing an
electrical junction box, are capital projects. Some have
expressed interest in that level of detail, but he opined that's
for the legislature to decide. The issue is whether the
legislature wants to exercise control over ARRC at the state
level rather than at the individual municipality and borough
level.
Number 2121
REPRESENTATIVE STEPOVICH inquired as to the largest project or
most track laid since the completion of the railroad in 1923.
MR. GAMBLE stated that no new track has been laid since 1923.
The project to Fort Greely would be the first new main line
track for the Alaska railroad, in fact in the United States.
REPRESENTATIVE OGG inquired as to the reasons behind the
exemptions for the railroad.
MR. GAMBLE posed a situation in which ARRC requests a permit and
obtains agreement from the Matanuska-Susitna Borough to bypass
the alternate route around Wasilla. Suppose the project is
upwards of $100 million and ARRC doesn't own the land. He
further proposed that an agreement is reached with the borough
and the entire NEPA process goes through and there is the
decision to build the project with federal funds. Due to the
court decision, the process can include any individual or
private group who wants to challenge the approval or disapproval
of a permit request and leave ARRC with no tool to illustrate
that it has done the public outreach, NEPA process, and agreed
with the municipality. Therefore, ARRC has to stop and litigate
each challenge.
REPRESENTATIVE OGG inquired as to how [subsection] (b) deals
with the individual because [subsection] (b) seems to address
local control through the local government and doesn't speak of
individuals at all.
MR. GAMBLE specified that [subsection] (b) addresses the court's
concern such that clarifying the language allows the exemption
[to be reinstated]. The exemption speaks to the individual or
local private group, who can't prevail under the exemption. Mr.
Gamble clarified that state law preempts an individual's ability
to have an equal opportunity as a municipality or borough to
challenge [the project].
Number 2335
REPRESENTATIVE OGG posed a situation in which ARRC has the
exemption and owns real estate through a municipality with the
500-foot corridor specifications. If this was the railroad
proposal from Fairbanks to the Alaska border, he supposed that
the railroad could hug that 500-foot corridor on one side and
wouldn't be under Tok's ordinances and could develop a shopping
center or a rock pit. He asked if that is the type of power
ARRC wants.
MR. GAMBLE replied no. The ARRC board thought of that in 1993
and established Board Rule 17, which specifies that ARRC has to
stay in the railroad business and not become equity partners in
other business ventures for construction. With regard to the
gravel pit being located next to a residential area, ARRC has
never done that ... [tape changes mid-sentence].
TAPE 04-16, SIDE B
MR. GAMBLE related that as a rule, ARRC would continue the
outreach currently done with the municipalities and boroughs.
It's not likely, he opined, that ARRC would ever try something
like [constructing a gravel pit next to a residential area].
Although the concern is that the risk of that is high, ARRC has
not done such under the past 18 years under the exemption.
Therefore, he opined that the risk is very low.
Number 2337
REPRESENTATIVE OGG agreed that ARRC probably wouldn't do the
aforementioned, but he questioned what would be wrong with
writing the language similar to that for a road right-of-way.
This [exemption language] seems fairly broad and raises red
flags.
MR. GAMBLE noted that there has been a suggestion in the Senate
Finance Committee that a sunset clause could be included such
that ARRC would continue under the status quo, save Eklutna, for
a period of time during which a task force will try to develop
the seam between operational use and the flexibility to operate
the railroad would want for interstate commerce purposes. He
suggested the sunset would be July 1st. The task force could be
comprised of the 13 entities along the Railbelt as well as
appropriate representation from the House and Senate and the
majority and the minority without the rush of the end of session
being a factor. The ARRC is willing to do the aforementioned,
he related.
Number 2202
REPRESENTATIVE KAPSNER related that one of the letters she
received in opposition to this legislation had to do with the
Eklutna spiritual site. The author of the letter had the
impression that ARRC wants to make a gravel pit out of the
original site of the community. For that reason, communities in
her district have supported Eklutna.
MR. GAMBLE said that there has been a bit of a miscommunication
because ARRC has never used that area as a gravel pit. The rock
quarry has been continuously mined by ARRC since the early
1940s. In the Land Transfer Act and the Alaska Native Claims
Settlement Act (ANCSA) there was an agreement made as the land
was partitioned and the approximately 36,000 acres was granted
to ARRC in the transfer. During that process, the rock quarry
was allocated to ARRC as part of the settlement. In the 1990s,
there was an MOA regarding the continued use of the quarry with
the provision that "at such time as the railroad would stop
using the quarry - the need for that rock went away and the
railroad didn't need it anymore - it would revert back to
Eklutna, Inc." The aforementioned agreement was made with
Eklutna, Inc. whereas the court case is with the Village of
Eklutna. Mr. Gamble reiterated that ARRC has not and would
never obtain gravel from this particular area because gravel is
used for fill and used for things that are relatively
unimportant compared to the quality of the rock at the Eklutna
site. There aren't a lot of sources of the quality of rock
found at the Eklutna site, which is why ARRC has used it. Mr.
Gamble acknowledged that ARRC would want the rock found at the
Eklutna site, but emphasized that it would want it on terms
amendable to the Village of Eklutna. If there are no terms,
ARRC would still like to determine the appropriate use of the
site. He emphasized that he wanted to keep the rock quarry
issue out of the court case because it's possible it could be
worked out with the Village of Eklutna because a number of
issues are being worked on successfully with Village of Eklutna.
Mr. Gamble said, "As a state instrumentality, in this day and
age, ... the check and balance first has to be through the board
and the board has a sense of what is going to work and doesn't
work and then if that board is to be overruled, it's going to be
overruled by this body right here." He opined that ARRC's
policy for the future will have to be to address each municipal
and public issue head-on and in an amicable manner.
Number 2037
REPRESENTATIVE KOOKESH recalled Mr. Gamble's desire to have some
time between now and next July based on the status quo.
However, he pointed out that the status quo isn't how [ARRC] has
envisioned it due to the Supreme Court decision.
MR. GAMBLE clarified that the status quo to which he is
referring is that of the [past] 18 years ago.
REPRESENTATIVE KOOKESH reiterated that since the Alaska Supreme
Court decision, the status quo of the [past] 18 years is no
longer the status quo.
MR. GAMBLE clarified that the status quo he is defining is the
exemption that ARRC has been operating under since [the Transfer
Act].
Number 1988
REPRESENTATIVE MASEK related her understanding that ARRC is
protected by the Interstate Commerce Commission Termination Act,
49 U.S.C. 701, which she said read: "State or local economic
regulations which could significantly interfere with railroad
operations is prohibited."
MR. GAMBLE explained that the aforementioned addresses that in
planning and zoning, a municipality may, for example, want to
control the speed of a particular track section or the hours of
operation of a particular track section. The aforementioned
would impact interstate commerce and that operational nature of
ARRC is exempt with regard to the federal legislation.
REPRESENTATIVE MASEK noted that seven of the railroads that
transport the majority of the nation's freight aren't exempt
from local planning authority. For example, Union Pacific, the
largest railroad company in the nation, operates in 23 different
states and hundreds of local communities without the type of
blanket exemption ARRC is seeking.
MR. GAMBLE reiterated, "The railroads are exempt. In fact,
there are a lot of court cases challenging that." The most
common [challenge] is regarding whistle blowing. The federal
law specifies that the whistles must be blown, although the
communities are challenging that. Because of so many cases, the
courts have been very successful in pressuring the railroads to
try to use technology to address the problem.
REPRESENTATIVE KOOKESH asked if the federal exemption is for the
railway on which the trains traverse or does it speak
specifically to the areas within a municipality where ARRC has
its train stations and storage yards.
MR. GAMBLE said that the state language refers to all of the
areas [mentioned by Representative Kookesh]. However, he wasn't
sure to what the federal protection referred.
REPRESENTATIVE KOOKESH requested clarification on the federal
protection.
Number 1824
CHAIR HOLM announced that HB 560 will be set aside.
[HB 560 was taken up again later in the meeting.]
SB 316-SEAT BELT VIOLATION AS PRIMARY OFFENSE
CHAIR HOLM announced that the next order of business would be
SENATE BILL NO. 316, "An Act relating to motor vehicle safety
belt violations."
CHAIR HOLM reminded the committee that testimony has been closed
on SB 316.
Number 1775
REPRESENTATIVE KOOKESH moved that the committee adopt Amendment
1, which read:
Page 1, line 3:
Delete all material and insert:
"* Section 1. AS 28.05.095(e) is amended to read:
(e) Notwithstanding any other provision of law,
a peace officer may not stop or detain a motor vehicle
not being operated on a highway to determine
compliance with (a) of this section, or issue a
citation for a violation of (a) of this section,
unless the peace officer has probable cause to stop or
detain the motor vehicle other than for a violation of
(a) of this section."
CHAIR HOLM objected for discussion purposes.
REPRESENTATIVE KOOKESH pointed out that seat belt laws apply
throughout the state, even in locations off the road system
where there are no highways. Representative Kookesh opined that
he didn't want this [proposed law] to be used as the only reason
to stop a vehicle in rural Alaska.
LAUREN WICKERSHAM, Staff to Senator Con Bunde, Alaska State
Legislature, spoke on behalf of the sponsor of SB 316, Senator
Bunde. Ms. Wickersham confirmed that SB 316 primarily [targets]
urban areas. She related that Senator Bunde wanted there to be
as much freedom for off-road activities in rural areas as
possible.
CHAIR HOLM inquired as to why it would be any less dangerous for
an individual to be thrown out of a vehicle in urban Alaska
versus rural Alaska.
MS. WICKERSHAM said, "It isn't necessarily less dangerous, the
point of the bill is ... in urban areas ... individuals that are
not involved, necessarily in car crashes, are paying for the
costs of the car crashes." She related that in the rural areas,
a lot of times individuals are not insured plus accidents
occurring in an off-road situation wouldn't necessarily involve
other individuals because off-road activities are probably more
of a private activity than driving on public roads.
CHAIR HOLM suggested that Ms. Wickersham is arguing against the
legislation because he understood that people would use their
seat belt if this legislation is implemented.
REPRESENTATIVE KOOKESH related the situation in rural Alaska.
For instance, in Angoon the speed limit is 15 miles per hour.
He reiterated that he didn't want this legislation to be the
impetus for law enforcement to stop vehicles in rural Alaska
just to determine whether seat belts are being used.
REPRESENTATIVE STEPOVICH said that Representative Kookesh's
argument is the same reason he doesn't want this legislation to
be implemented in urban Alaska. What's good for [urban] Alaska
should be good for [rural] Alaska, he opined.
Number 1629
CHAIR HOLM maintained his objection to Amendment 1.
A roll call vote was taken. Representatives Kohring, Ogg,
Kapsner, and Kookesh voted in favor of Amendment 1.
Representatives Stepovich, Masek, and Holm voted against it.
Therefore, Amendment 1 was adopted by a vote of 4-3.
CHAIR HOLM, in response to Representative Kookesh, stated that
the next committee of referral for SB 316 is the House Judiciary
Standing Committee.
REPRESENTATIVE STEPOVICH related similar concerns as
Representative Kookesh regarding law enforcement being able to
stop an individual merely to determine if he or she is wearing
his or her seat belt.
REPRESENTATIVE MASEK echoed the same concerns as Representative
Stepovich.
CHAIR HOLM, in response to Representative Stepovich, confirmed
that SB 316 has two indeterminate fiscal notes.
Number 1489
REPRESENTATIVE MASEK moved to report SB 316, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes.
REPRESENTATIVES STEPOVICH and MASEK objected.
A roll call vote was taken. Representatives Kohring, Ogg,
Kapsner, and Kookesh voted in favor of reporting SB 316, as
amended, from committee. Representatives Stepovich, Masek, and
Holm voted against it. Therefore, HCS SB 316(TRA) was reported
out of the House Transportation Standing Committee by a vote of
4-3.
HB 560-MUNICIPAL LAND USE REGULATION
CHAIR HOLM returned the committee's attention to HOUSE BILL NO.
560, "An Act relating to application of municipal ordinances
providing for planning, platting, and land use regulation to
interests in land owned by the Alaska Railroad Corporation; and
providing for an effective date."
CHAIR HOLM announced that he didn't intend to report HB 560 from
committee today, although he wanted to take the testimony from
those present.
Number 1414
KATHY WELLS, Executive Director, Friends of Mat-Su, informed the
committee that Friends of Mat-Su is a local land use planning
organization. She related that Friends of Mat-Su is opposed to
HB 560, which would exempt Alaska Railroad Corporation (ARRC)
from local and municipal zoning. She further related that
residents in the 13 Railbelt communities aren't aware that this
legislation is being considered. Furthermore, ARRC has been
operating for 18 years without this exemption and already has
protections against local economic regulatory interference. The
recent Supreme Court ruling wouldn't cause interference with
essential operations. Ms. Wells expressed the need for local
communities to have the opportunity to comment through an
adequate public process on this legislation. A railroad doesn't
need wholesale governmental immunity from local zoning in order
to operate. As mentioned by Representative Masek, seven
railroads that are privately owned operate by abiding by local
zoning. Those seven railroads operate and continue to grow.
The recent proposed committee substitute (CS) has added the
extension of Fort Greely and describes the public purpose of
bonds for this project, which confuses the issues that generated
HB 560, which is this exemption. Therefore, Ms. Wells suggested
that Section 1 of Version I be removed. She questioned the need
to rush with this legislation, and expressed the need to educate
the public about the necessity for this exemption.
Number 1295
MARC LAMOREAUX, Eklutna Tribe, began by recalling Mr. Gamble's
earlier testimony that ARRC wouldn't place a gravel pit next to
a nice neighborhood and questioned whether ARRC didn't believe
the Native Village of Eklutna is a nice neighborhood. Mr.
Lamoreaux urged the committee to reject HB 560. He opined that
many of the arguments regarding why the railroad doesn't need
the exemption, such as the Interstate Commerce Commission
Termination Act. He further opined that the recent Supreme
Court decision wouldn't interfere with essential railroad
operations. The Supreme Court case adopts the balancing of
interest test, which has been adopted by the vast majority of
courts that have addressed the issue of government immunity in
the last 30 years. [The balancing of interest test] has been
found to constitute good and enlightened public policy in the
area of zoning because the test requires the railroad to comply
with local zoning when it doesn't create a hardship for [the
railroad]. Furthermore, the test would immunize the railroad
from local zoning when compliance with local zoning would
interfere with the railroad's operations. He likened [the
balancing of interest test] to the requirements placed on the
Department of Transportation & Public Facilities (DOT&PF) and
other state agencies under Title 35. Under the recent Alaska
Supreme Court decision, local and public officials are allowed
to have input while the essential operations of the railroad
aren't hindered. However, this legislation would eliminate all
public input and that from local government. Mr. Lamoreaux
noted that his written testimony, which he agreed to fax,
reviews the history of the situation in Native Village of
Eklutna. He mentioned that the Alaska Supreme Court noted that
the site [in the Native Village of Eklutna] is
historically/culturally significant, which should be considered
during the conditional use permitting process.
Number 1024
SARA HEIDEMAN, Attorney, Native Village of Eklutna, reiterated
that the land being destroyed by ARRC is of historical and
cultural significance, which was confirmed by an ARRC study.
She recalled Mr. Gamble's testimony that the rock being taken
from the site at Eklutna is superior quality, "proven by the
fact that they've been taking ballast out of that pit for 80
years." However, that's not true because ARRC's testimony at
the trial was that ARRC only recently started using the rock at
the Eklutna site for ballast. There are other comparable and
available sites that have, obviously, been used for decades.
"So, it's just a fortuity that they own it and now want to use,
that this issue is coming up," she related.
MS. HEIDEMAN then turned to the Interstate Commerce Commission
Termination Act, which was passed in 1995. This Act abolished
the Interstate Commerce Commission (ICC), placed restrictions on
state and local regulation of railroads, and created the Surface
Transportation Board. Under this federal law, state and local
regulation that significantly interferes with core railroad
operations is prohibited and those core railroad functions are
regulated by the Surface Transportation Board. Ms. Heideman
pointed out that only after passing the federal law would one
enter the balancing test adopted by the Supreme Court last
month. The only reason Mr. Gamble specified for the need for
ARRC to have a blanket exemption is because "it would encumber
progress." However, she reiterated earlier testimony
highlighting that DOT&PF is required to comply with zoning
generally, while it can be exempt from it in appropriate cases.
The aforementioned is what the balancing test would do with
ARRC.
MS. HEIDEMAN recalled Mr. Gamble saying that if this [balancing
test] applied to ARRC, and ARRC obtained the necessary permits
from a municipality, an objecting third party could cause ARRC
to stop and deal with it. However, that's not the case. She
said that if ARRC obtains a conditional use permit from the
municipality and a third party objected, that objection could
occur through the standard planning and zoning appeal processes.
However, it wouldn't stop the effect of the permit during the
appeal process unless the third party can show that it's likely
to win the appeal and can put up a bond. The bonding
requirements, she noted, prevent most members of the public from
stopping the effect of a permit. In the last three years of the
litigation between ARRC and the Native Village of Eklutna, ARRC
has operated the gravel pit because the village didn't have the
financial ability to pay a bond to stop operations during the
appeal process. Ms. Heideman recalled that Mr. Gamble indicated
that the private rail companies that operate [in the Lower 48]
are exempt from land use regulations, but disagreed and noted
that those companies are subject to the provisions of the
federal law. Other than the federal law there is no other
blanket immunity from land use regulations.
Number 0702
VERA JAMES, Alaska Native Health Board (ANHB), informed the
committee that ANHB advocates on behalf of 229 federally
recognized tribes, including Eklutna, in relation to health care
and other issues. She related that ANHB believes that passage
of HB 560 would be detrimental to adjacent residential
landowners and the public. Should the proposed exemption
encompassed in HB 560 be granted, she understood that ARRC
intends to blow up the Eklutna site and turn it into a gravel
pit. Therefore, ANHB urges the legislature not to pass HB 560
because it fails to take into account the voices and interests
of residents [of Eklutna] and the public.
Number 0621
SUSANNE DiPIETRO informed the committee that she is a resident
of Government Hill in Anchorage. She related her opposition to
Section 1 [of Version I]. She further related that there are
plenty of public and private businesses and state entities that
comply with zoning in doing business statewide. Ms. DiPietro
turned to the unfairness of this proposed exemption because, for
instance, a private business that happened to own a quarry and
wanted to mine would have to obtain a conditional use permit for
which a public process is attached. The aforementioned is a
cost of business. However, with this exemption ARRC wouldn't
have to incur that cost. She emphasized the need to seriously
consider why one would set up such an unfair situation when
there is no showing that having to comply with local zoning
would unduly burden ARRC. Therefore, she suggested deleting
Section 1 and passing the remainder of the legislation. If
ARRC, operating without the exemption, is having troubles, then
it can document those and return to the legislature with
specific problems necessitating the exemption.
Number 0440
KEVIN RITCHIE, Executive Director, Alaska Municipal League
(AML), informed the committee that the committee packet should
include a letter from AML. The 2004 policy statement AML
adopted states: "The League feels strongly that local planning
and zoning laws and review processes shall apply to state land
use actions to allow for comprehensive local control of
community development." However, AML acknowledges that in a
statewide transportation system, there will be some number of
issues that have to be regulated consistently between
communities, otherwise it will disrupt operations. He, too,
highlighted that DOT&PF has found ways to work with local
municipalities. He noted that two communities are going to meet
this evening to consider the concept of doing some form of the
proposal embodied in HB 560 with a sunset.
REPRESENTATIVE STEPOVICH inquired as to why [the municipalities]
weren't involved sooner.
MR. RITCHIE said that the municipal policy has been in effect
for some time. This particular legislation is in response to a
recent lawsuit. Furthermore, the language is so broad that it
takes the exemption from local control to a new level.
Number 0190
PAT GAMBLE, President & CEO, Alaska Railroad Corporation,
Department of Community & Economic Development (DCED), in his
closing remarks said that this process has made the case that
when something is opened up broadly, there is a broad response.
He related his understanding from the testimony today that the
operational issues aren't really of concern while the land use
issues are. He pointed out that at the federal level there is
the unreasonably burdened interstate commerce test, which is a
legal issue that has operational implications. The very nature
of this issue begs for time in order to determine how and if the
line [between interstate commerce and operational issues] will
be clarified. Therefore, Mr. Gamble suggested that the proposal
made in the Senate side to tackle this over a period of time in
an attempt to draw the lines might be appropriate. However,
maintaining the status quo with a sunset would address some of
the current projects.
TAPE 04-17, SIDE A
MR. GAMBLE indicated ARRC's interest in participating in a task
force to tackle this issue and report back to the legislature
with the appropriate path forward.
CHAIR HOLM indicated that the legislation would be held until
the possibilities are known.
Number 0092
REPRESENTATIVE STEPOVICH surmised that ARRC wants to work with
the municipalities.
MR. GAMBLE agreed and related his desire to be part of a
consensus and clarify the legislative language to the
satisfaction of the court.
CHAIR HOLM agreed and noted that those at the end of the rail
line know that whatever happens "upstream" on the railroad has
consequences at the end of the line as well. He said, "It's
apparent to me that it's very important that the 13 communities
don't impact negatively the cost of transportation, the cost of
our intrastate commerce, and ... put that price to bear on one
end of the hose, if you will ...."
Number 0251
REPRESENTATIVE OGG inquired as to why the minimalist approach
shouldn't be taken rather than the broad brush that's being
proposed.
MR. GAMBLE characterized Representative Ogg's question as one to
pose in the task force. If there's a way to go forward and
define [the exemption] rather than an all or nothing approach or
minimalist view, he expressed interest in working on that. "My
original argument was an all or nothing based on the greater
good as I see it, that's clearly not going to win the day ...
and to continue that argument is simply ... fruitless for the
railroad to pursue," he said.
REPRESENTATIVE OGG surmised that with the broad-brush approach,
the law [under the Supreme Court's decision] would be the law.
He questioned why ARRC [and everyone involved] wouldn't be in a
better position asking for the federal law and then propose
which specifics to Alaska zoning law should be overridden.
MR. GAMBLE answered that Representative Ogg's suggestion
probably couldn't come together this session. Furthermore, the
task force and the sunset clause could accomplish the same
thing.
REPRESENTATIVE OGG said he begged to differ because the language
would be shorter, such that it would read: "Municipal
ordinances providing for planning, platting, and land use
regulations adopted under Alaska statutes or other law do not
apply to core railroad operations as defined in federal statute
and regulations." He opined that the aforementioned is clear.
MR. GAMBLE pointed out that the language would require legal
staff to define the "core railroad operations," which he
indicated could take some time. For instance, ARRC is building
the Operations Center at Ship Creek. Although if the building
isn't built the railroad can continue its operations, he would
argue that the building is essential to operations if he moves
everyone out of the current building. The question becomes
whether the building is just that or is it core railroad
operations. Currently, ARRC is in the process of obtaining a
building permit for this building, which would normally not be
the case except to let the municipality know that a nonmunicipal
building is being built in the railroad area. The task force
could draw the line to the satisfaction of all those on the
Railbelt. Mr. Gamble said that he didn't have an objection to
Representative Ogg's suggestion.
Number 0697
CHAIR HOLM announced that HB 560 would be heard again on
Thursday, at which time he would reopen testimony. He closed
public testimony for the day. Chair Holm inquired as to the
relationship between interstate and intrastate commerce.
MR. GAMBLE specified that ARRC falls under the ICC.
REPRESENTATIVE STEPOVICH asked if the core railroad requirement
is the Division of Operations.
MR. GAMBLE predicted that is an area where there will be debate
because a core requirement for the railroad is to obtain ballast
or gravel. He confirmed that core operations would include
speed, whistle blowing, scheduling, et cetera. However, running
a hotel isn't a core operation. Again, the question is where to
draw the line for land use. In further response to
Representative Stepovich, Mr. Gamble confirmed that ARRC does
have a Division of Operations that doesn't fall under the core
railroad requirement. He related that the 36,000 acres of ARRC
real estate necessitates an entire division that is separate
from operations. Mr. Gamble explained that ARRC has one
division that addresses planning, construction, and financing up
to the point of building [the rail]. If there is a facility,
real estate development and management deals with it while track
stays within the operations division. Once a facility, even if
an operational building, is built, the real estate division owns
the building.
MR. GAMBLE, in response to Chair Holm, explained that by law the
Board of Directors of ARRC manages the railroad and delegates
the authority to him to operate it on a daily basis as well as
certain management rights. Therefore, anything above a certain
dollar amount has to be approved by the board, including all
land use and real estate issues. He confirmed that the board
members are appointed by the governor. The board is a seven-
member board in which the positions are specified in law and the
members serve at the pleasure of the governor. He noted that
certain positions, such as the commissioners of DCED and DOT&PF,
are always members of the board. The board also consists of a
labor representative, regional representatives, and
representatives with experience "outside train operations
management." He indicated that there are at least four public
members. In further response to Chair Holm, Mr. Gamble said
that the board isn't terribly politicized and he has never seen
a situation in which the activities promoted by the board would
run counter to the municipalities [in which the railroad runs].
He opined that the independence of the board has been admirable.
[HB 560 was held over.]
ADJOURNMENT
There being no further business before the committee, the House
Community and Regional Affairs Standing Committee meeting was
adjourned at 3:34 p.m.
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